January 2010

January 27, 2010

President Barack Obama found space at the end of his first State of the Union address for a warning to employers who might be unfairly paying female employees less than they're due.

"We are going to crack down on violations of equal pay laws — so that women get equal pay for an equal day’s work," he said in the quick reference.

Obama gave no further details, though he was echoing an issue that he campaigned on in 2008 after the U.S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. The 5-4 decision shortened the statute of limitations for some discrimination suits, and Congress overrode the decision a year ago.

He also highlighted the work of the U.S. Justice Department's Civil Rights Division, which enforces discrimination laws for state and municipal employees as well as prosecutes civil rights violations. And he tied anti-discrimination enforcement to constitutional protections.

"We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we're all created equal, that no matter who you are or what you look like, if you abide by the law, you should be protected by it; if you adhere to our common values you should be treated no different than anyone else," he said. "We must continually renew this promise."

President Barack Obama tonight called for new restrictions on those who try to influence policy in Washington, saying he wants to "end the outsized influence of lobbyists."

In his first State of the Union address, Obama included two proposals targeted at lobbyists: requiring them to disclose "each contact" they make on behalf of a client, either with the executive or legislative branch, and limiting how much lobbyists can contribute to candidates for federal office.

"We face a deficit of trust — deep and corrosive doubts about how Washington works that have been growing for years," he said in the prepared remarks. "To close that credibility gap we must take action on both ends of Pennsylvania Avenue to end the outsized influence of lobbyists."

He said the proposals would build on the ban he imposed on lobbyists taking administration jobs or serving on federal boards and commissions — though the White House has approved exceptions for lobbyists in some cases. On Monday, The National Law Journal reported how the U.S. State Department was able to get around the ban in at least one case.

Further disclosure requirements could be met with resistance on K Street, particularly among lobbyists who make frequent contact with lawmakers or administration officials, but the idea got somedebate last year after Obama took office.

Here is the text of President Obama's just-delivered remarks relating to the Supreme Court's Citizens United v. FEC decision:

"With all due deference to separation of powers, last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'd urge Democrats and Republicans to pass a bill that corrects some of these problems."

The "all due deference" phrase, by the way, was not in the advance text of the speech. And was that a negative shake of the head from Justice Samuel Alito Jr.(a member of the majority in Citizens United) in response? Alito also appeared to mouth the words "not true." As we noted not long ago at this post it's unusual for justices to register much reaction to applause lines delivered during the speech.

FOOTNOTE: In addition to the justices in the chamber, from the Court we've spotted Jeffrey Minear, counselor to the chief justice; Pamela Talkin, marshal of the Court; and deputy clerk Cynthia Rapp.

UPDATE: Michael Keegan, president of the liberal People for the American Way, applauded Obama's criticism of the Citizens United decision and his call for legislation to undo its damage. In a statement Keegan added, “While legislation is a crucial part of the effort to repair this decision, it should be only a part of our response. In addition, we need to confirm Supreme Court Justices who will keep faith with the core values of the Constitution and move to enact a Constitutional amendment restoring government's ability to regulate the influence of corporations in elections."

Supreme Court justices received applause just now, as they entered the House chamber for the State of the Union address. But advance hints about the speech by President Obama suggest he won't be cheering. He is expected to take a swipe at the Court for its ruling last Thursday in Citizens United v. FEC, accusing the Court of opening the floodgates of special interest money into campaigns. He'll ask for support from Democrats and Republicans to undo the decision, which said that bans on independent expenditures from corporations violate their First Amendment rights.

The attendance rate of justices varies widely from year to year, occasionally even with no justices at all on hand. Tonight we spotted Chief Justice John Roberts Jr., Justice Anthony Kennedy -- author of Citizens United -- as well as Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

UPDATE: A reader asks why the justices don't join in the applause during the State of the Union address. That's a longstanding tradition, driven by two interests: first, they do not want to seem partisan by applauding initiatives that one or another party is pushing. And second, you never know which of those initiatives might turn into legislation that might end up on the Court's docket for interpretation.

For D.C. Magistrate Judge Janet Albert, it was a day for explanations.

Albert took the witness stand again today in the criminal trial of her ex-girlfriend, Taylar Nuevelle, who faces burglary and stalking charges for allegedly breaking into the judge's Washington home in 2008 following their tumultuous breakup. It was Albert's second day of testimony in D.C. Superior Court and featured a cross examination from defense lawyer Dorsey Jones Jr., which helped clear up some puzzles looming over Albert's version of events.

In particular: Why didn’t Albert go to the police sooner?

While taking questions from prosecutors this morning, Albert tearfully described how Nuevelle was discovered unconscious in Albert’s attic in the early morning hours of Sept. 14, 2008, surrounded by pills and liquor bottles. (The prosecution projected a large photo of the bucket Nuevelle had allegedly used as a makeshift toilet.) Albert said that she “foolishly” decided not to file a complaint with police after Nuevelle was taken to the hospital that day in the hope that her former girlfriend would seek help on her own.

Instead, she testified, Nuevelle continued sending a barrage of angry e-mails and text messages, sometimes demanding back personal items that were still at Albert’s house, but mostly berating her for their failed relationship. Albert said that she was afraid and that she believed Nuevelle had broken into and deleted one of her e-mail accounts. She asked the U.S. Marshals Service to look at her house to suggest security improvements. She had an ADT system and motion detecting lights installed. But she didn’t get a restraining order.

Why? Albert said that, having worked on the court’s domestic violence unit for two-and-a-half years, she knew the staff. She called herself an intensely private person and said she didn’t want her personal problems invading her work life.

Nuevelle “wanted to bring this into a forum, into my work environment, to embarrass and humiliate me,” Albert said. “I didn’t want to go there.”

She later added, ruefully, “Now everything’s an open book.”

Jones began his cross examination by asking Albert about her living arrangements with Nuevelle, who he earlier argued was simply trying to retrieve her belongings from the house where the two of them had lived. The line of questions only seemed to give Albert a chance to deny that she and Nuevelle had ever cohabitated.

“She moved a lot of stuff into your house, correct?” Jones asked.

“That’s not correct,” Albert replied.

A few moments later, he tried another route.

“Did you and Ms. Nuevelle discuss terminating the lease on her apartment?”

“No, never.”

Later, Jones tried to press Albert on the timing of her police complaint, which she filed on Sept. 27, 2008 – two weeks after the alleged break-in. Albert had testified that on Sept. 23, 2008, she received word about an anonymous judicial ethics complaint filed with the court. On Sept. 25, she was told about another anonymous complaint, this one filed against her with D.C. Child Protective Services. She suspected Nuevelle was involved in both of them, she said. Jones stressed the order of events and the fact that Albert had not previously sought a restraining order.

But Albert seemed to have no problem acknowledging that the police report was a response to the complaints. On redirect, in fact, she said just that.

“I decided to go to the police when I got notification about the anonymous complaint, not because I was trying to retaliate, but because I saw this woman is going to stop at nothing,” Albert said. “This isn’t a situation where this woman is going to burn out. She’s going after my kid and my job.”

Former White House Counsel Gregory Craig told The National Law Journal today that when he set out to pick a law firm after a year in the White House, it was all about "global reach."

Craig, who will be leading the newly formed global policy and litigation strategy practice group in the Washington office of Skadden, Arps, Slate, Meagher & Flom, said he opted to join Skadden--over returning to his longtime firm Williams & Connolly--because he was looking for a firm with more international reach. Craig said he had spent the last few weeks talking to both Williams & Connolly and Skadden, but decided that Skadden offered a broader range of practices and more international offices, which was a better fit for his new practice.

“Williams & Connolly has been my professional home for the past 30 years,” Craig said. “But its focus is narrower than Skadden’s, which has enormous scope in terms of both clients and in the expertise of the lawyers.”

Craig said a lot of the details about his new practice group haven’t been worked out yet. Things such as the size of the group and the role the practice will play at the firm are still undecided, Craig said. But the practice’s work will be far reaching.

Craig described the practice as a combination of litigation, global policy, strategic planning, crisis management, and corporate work--all with a Washington focus. “It’s a different approach to practicing law,” he said. “It is going to be a large playground to play in.”

Craig is not currently bringing anyone over from Williams & Connolly, but he isn’t ruling it out either. “We’re going to be looking for uniquely qualified people who are well prepared to deal with a multiplicity of practice areas. We’re going to be looking everywhere for talent.”

He said his role at Skadden will be that of an adviser, but he stressed that he will still maintain a hands-on approach to client matters. “Being simply an adviser is not Greg Craig,” he said. “Litigation has always been a big part of my practice, and I’m not setting that aside. If I have to go to court for a client, I’m happy to go to court.”

Of his time in the White House, Craig said he “couldn’t be prouder,” but after a year it was time for him to return to private practice. Despite months of rumors that he was being forced out over the role he played in the Obama administration’s effort to close down the Guantanamo Bay detention camp, Craig said he was not pressured to leave. “I talked to the president on numerous occasions and told him that a year in the White House was about all I could do. He understood that and was fine with it. I was not pressured to leave at all.”

Craig said that while he was White House counsel as well as in the months before Barack Obama was inaugurated, his office was involved in drafting a range of executive orders that he said will have “lasting effects to the benefit of the country.”

“Our office had a terrific record and had an enormous contribution to the president’s first year, not just on national security and Guantanamo but on energy and the environment. I’m very proud of our record,” Craig said.

Craig also oversaw the vetting process for judicial nominations, including 12 nominees to the U.S. courts of appeals and Justice Sonia Sotomayor. “The nominees to the court of appeals are an incredibly diverse group of jurists,” Craig said. “And Justice Sotomayor is not only a remarkably experienced jurist, she’s a wonderful person, so her confirmation is one of the highlights of my time in the White House.”

Nonetheless, Craig said, he’s looking forward to getting back to private practice. Since leaving the White House counsel’s office on Jan. 3, he has been skiing and spending time with his family. “As the president knows, time in the White House is incredibly hard on a family, so I’m looking forward to getting back to work as a lawyer in Washington,” Craig said.

Danaher, which is headquartered in Washington, makes and markets a range of professional, medical, industrial, commercial, and consumer products.

In September, the company announced a $650 million deal to acquire Ontario-based MDS's analytical-technologies business and a 50% stake in a joint venture.

But the FTC was concerned that the deal would harm competition in the North American market for laser microdissection devices. These devices are used to separate small groups of cells — or even a single cell — from larger tissue samples for specialized tests, such as DNA analysis, RNA analysis, or protein profiling.

Currently, four companies are competitors in this market. The merger would combine Danaher’s Leica brand of laser microdissection devices with MDS’s Arcturus brand, leaving only three.

The parties agreed to an FTC order requiring them to sell assets related to MDS’s Arcturus brand to Life Technologies Corp. The FTC commissioners voted 4 - 0 to approve the order.

“The commission’s order will protect competition in the specialized and highly concentrated market for laser microdissection devices, leading to lower costs and increased innovation,” said FTC Bureau of Competition director Richard Feinstein in a statement.

Former White House Counsel Gregory Craig has signed on to join Skadden, Arps, Slate, Meagher & Flom's Washington office.

Craig's signing, which was first reported today on Above the Law, has been the most closely watched lateral move in the Washington legal community since Craig announced he was leaving the White House in November. At Skadden, he will lead the firm's newly formed global policy and litigation strategy practice group.

Before joining the Obama administration, Craig was a partner at Williams & Connolly.

Craig has also served under President Bill Clinton as assistant to the president and special counsel and represented President Clinton in his impeachment trial in the Senate. He was director of policy planning under Secretary of State Madeleine Albright. And he worked for the late Sen. Edward Kennedy as his senior adviser on defense, foreign policy and national security.

Craig left the White House after drawing fire for months for his role in the Obama administration's plan to close the detention camp at Guantánamo Bay, Cuba. In October, The National Law Journal had a lengthy interview with Craig before he announced his resignation.

A former associate filed suit against Howrey this morning, alleging that the law firm routinely subjected her to discriminatory treatment based on her race.

Kamisha Menns, a black woman born in Jamaica, says in the complaint, filed in D.C. Superior Court today, that Howrey violated the D.C. Human Rights Act by retaliating against her, creating a hostile work environment, and inflicting emotional distress, both intentionally and negligently. Menns has asked for $30 million.

The complaint says Menns, who focuses her practice on antitrust and competition law, started in Howrey’s Brussels office on Jan. 19, 2009, after being heavily recruited to join the firm from Freshfields Bruckhaus Deringer’s Washington office. To cover the cost of moving, Menns was paid a signing bonus of €10,000, according to the complaint.

At some point after moving to Brussels, Menns says in her complaint, she began being removed from projects despite receiving compliments on her work from several partners. She says her workplace was shifted to a different floor from that of other lawyers. When she reached out to the office’s managing partner, Trevor Soames, the complaint alleges, Menns was told “that because she was an ‘impressive woman’ Ms. Menns made Howrey’s white employees feel uncomfortable.” The complaint alleges that Soames also told her that because she was the first black associate to work in the office, the office staff’s treatment of her might be influenced by the fact that “they had never before been forced to be in a ‘subordinate position’ to a black person.”

The complaint goes on to allege that the situation only got worse when she reached out to firm leaders, including the Washington-based diversity committee and CEO Robert Ruyak. In a June 2, 2009, meeting, a day after Menns sent an e-mail to Ruyak and eight members of the diversity committee outlining the allegedly discriminatory treatment, Menns was fired. Since then, she has been unable to find work, the complaint says, which she claims is because the firm accused her of taking confidential documents from both Howrey and Freshfields. She also claims that she suffered emotional distress.

Menns’ lawyer, David Sanford of the employment litigation boutique Sanford, Wittels & Heisler, said, “This case is about Howrey creating an environment of segregation in the workplace and making Ms. Menns the focus of discriminatory behavior.” Sanford added that his client makes for a “very credible witness,” given her educational background. She holds an LL.M. from the University of the West Indies and an LL.M. from New York University. Sanford says he plans to take the matter to trial.

In a statement, Howrey said, “Personnel issues are always confidential and we will have no comment on this particular matter. As a matter of record, it should be noted that Howrey has been a leader among law firms in the area of diversity. For the last several years, Howrey has been recognized as such by among others, the Minority Law Journal’s 2009 ‘Diversity Scorecard,’ an annual survey which ranked Howrey 13th nationally among the top 200 grossing law firms in the US and was the recipient of Managing Intellectual Property’s Annual Award for Diversity.”